The biggest hurdle in family law litigation is often the initial one: getting that first court order. This applies to spousal support and child support, particularly when the payor spouse or parent is contesting paying the amount of support you are seeking or contesting paying any amount of support at all. But you complete all the litigation and trial to obtain your spousal support and/or child support order, the fight may not be over.

When a payor spouse or parent fails or refuses to pay their court-ordered support, you're left with only two options: working out a resolution with the payor spouse or parent or, more often than not, resorting to litigation. Most people are apprehensive at the idea of having to go back to court because of the time, energy, and financial resources it takes. Plus, they remember the initial litigation and how hard it was to get that first support order and the idea of going back is discouraging. However, you're able to ask the court to award you attorneys' fees if the payor spouse or parent is not paying.

But lawsuits to collect on spousal support or child support arrears are actually relatively straightforward and typically involves much less effort than the initial support determination. This is because the court is only interested in four main questions: (1) whether the payor spouse or parent failed to pay the full amount due and, if yes, how much back-support is owed, (2) whether to hold the payor spouse or parent in contempt of court for violating the support order, (3) setting a new payment plan for the arrears on top of the regular support that continues to accrue, and (4) determining whether any additional punishments are necessary as a result of a contempt finding. Plus, again, you are able to ask the court to award you your attorneys' fees for bring this type of lawsuit.

These lawsuits are referred to as "show cause" petitions or, simply, a "show cause." "Show cause" means that the payor spouse or parent has to appear in court and "show cause," i.e., explain why he or she is not in violation of the court order and should not be held in contempt.

Show cause litigation in Virginia comprise of two steps: there is the first, initial status hearing, also called the initial return, and the second hearing, which is the trial. There may be other hearings in between depending on whether you or the payor spouse or parent files any motions.

I. The Filing Requirements

Va. Code Section 8.01-274.1 provides the requirements for show cause petitions in the Circuit Court, while Va. Code Section 20-115 provides additional details for show cause petitions in the family law context in the Circuit Court. You will need to file a "rule to show cause," the show cause petition, and an affidavit. The petition and affidavit can be the same document, but the rule to show cause is separate. The rule to show cause is a very brief order that is entered by the court. The order instructs the payor spouse or parent to appear at the designated initial return date. The order does not grant your petition, but rather merely initiates the court hearing process by putting the payor spouse or parent on notice of the proceeding.

The court you file your petition with depends on which court entered your support order. If the Circuit Court entered the support order, which may be part of a final divorce order or a settlement agreement incorporated into a final divorce order, then you may file in Circuit Court. However, you should review the order and/or settlement agreement to see if the Circuit Court remanded the matter of spousal support or child support to the JDR Court. If yes, then you will need to file your show cause petition with the JDR Court. And if the JDR Court entered your support order, then you simply file your show cause petition with the JDR Court.

Generally, you will need to include a copy of the support order with your show cause petition. When filing, you should bring one original copy of each document and extra copies for service and for you to keep for your records. If in doubt, call the court and ask about the number of copies that is required, but remember to bring one extra copy to get date-stamped with proof of filing for your own records.

Va. Code Section 8.01-296 details the types of service that are permitted for individuals. Personal service means hand-delivering a copy of the documents to the actual payor spouse or parent. Substituted service means hand-delivering a copy of the documents to a member of the payor spouse or parent's household that is at least 16 years of age. Substituted service can also mean posting a copy of the documents to the front door of the payor spouse or parent's "place of abode," or their home, and mailing a copy of the documents to the same address at least ten days before the first hearing date, with a certificate of mailing filed with the court.

If the payor spouse or parent lives in Virginia, you can request service through the Sheriff's Office for $12.00. If they live outside of Virginia, you can obtain service through the Secretary of the Commonwealth or by private process service.

III. The Initial Return

The initial return is normally a short status hearing. The court will ask the payor spouse or parent if he or she admits to owing the amount you stated in your petition. If yes, then the court may enter a final order that same day or schedule another hearing on the contempt disposition. If no, then the court will schedule a trial date.

If you are in the Circuit Court, you automatically have the right to issue discovery. But if you are in the JDR Court and you want to be able to issue discovery, you will need to ask the court for permission at the initial return. The court may ask you to explain why you believe discovery is necessary.

IV. The Trial

At the trial, bring your support order and proof of all payments made by the payor spouse or parent since the entry date of your support order. The court will ask you how much the payor spouse or parent owes you through the trial date, so be prepared to provide that number along with any supporting calculations.

If the payor spouse or parent is unable to provide proof of payment for any month that you stated he or she missed or failed to pay in full, then he or she will be unable to disprove your testimony.

The court will weigh the evidence presented, including the parties' testimony, the testimony of any witnesses, and any other evidence submitted before the court. The court will then decide whether to grant your show cause petition and find that the payor spouse or parent violated the support order. If yes, the court may enter its final ruling that same day or it may set a status hearing some time out for the ruling. The court may delay its ruling to allow the payor spouse or parent time to demonstrate that he or she is putting in a serious effort to comply with the court's order. If he or she does so, then the court will likely exercise leniency in its ruling.

V. The Ruling

Regardless of whether the ruling happens the same day as trial or at a later date, the court first decides what the arrearage amount is after weighing the evidence. Once that amount is determined, the court will decide how the payor spouse or parent will make payments towards that arrearage. The payor spouse or parent may already have an existing spousal support or child support obligation owed to you, so the court will take that and the payor spouse or parent's financial status into consideration when setting the arrearage payment. The court will also decide whether to formally hold the payor spouse or parent in contempt and, if yes, whether to sentence the payor spouse or parent to imprisonment for a term of up to one year. The court is not required to hold the payor spouse or parent in contempt in order to order him or her to comply with the support order. The court may also order the payor spouse or parent pay for your reasonable attorneys' fees and costs.

VI. Conclusion

While suing in court can be daunting, show cause petitions based purely on nonpayment of support are often relatively straight forward because the evidentiary burden is easy to prove: either the payor spouse or parent paid or didn't. Once you establish how much is owed, the arguments shift to how much the payor spouse or parent can afford to repay on a monthly basis and whether the court ought to make a contempt finding.

If you need assistance filing a show cause petition or would prefer to have an attorney represent you in court, especially since attorney’s fees are recoverable in these actions, please feel free to contact us for a consultation.

A protection order is the same thing as a restraining order in that both are designed to protect you against an abuser. In DC, a protection order requires that the person who is subject to the order, the respondent, stay away from you, the petitioner. However, a protection order can provide many other types of protection and relief, as explained in Section II below. You can obtain a protection order if the “respondent has committed or threatened to commit one or more criminal offenses against [you]” (see DC Code Section 16-1003(a)). There is no filing fee to request and obtain a protection order.

I. Types of Protection Orders

DC has three types of protection orders: the first is a Civil Protection Order, which is used when the person threatening or committing a crime against you is a family member, roommate, someone you dated or had a sexual relationship with, someone with whom you share a child, spouse, ex-spouse, or someone who dated your current boyfriend, girlfriend, or spouse (see DC Code Section 16-1001(6)-(9), (12), and DC Code Section 16-1003(a)). This type of protection order is also used in cases of stalking, sexual assault, and sexual abuse. A Civil Protection Order can last up to one year.

The second type is a Temporary Protection Order, which offers much of the same protections of a Civil Protection Order, but only lasts for up to two weeks (see DC Code Section 16-1004(b)). Because it is granted ex parte, or without the abuser present, this order is meant as a placeholder while you schedule and hold a hearing for the Civil Protection Order (though if the respondent fails to show up to the hearing, then the Civil Protection Order can be granted ex parte as well).

The final type is an Emergency Temporary Protection Order, which is similar to a Temporary Protection Order, except that it lasts for only five days (see DC Police’s Guide on Protection Orders). Only a police officer and an advocate from Survivors and Advocates for Empowerment (SAFE) can request this type of protection order.

Reimburse you for property damage, medical costs, and other expenses you incurred due to the respondent's actions.

In addition to the above, the Court could also grant the following relief to the petitioner:

Grant you temporary custody of the children and, assuming the respondent shows that visitation will not hurt the children's emotional development or endanger them (see DC Code Section 16-1005(c-1)), arrange for a visitation schedule that protects your safety;

Order the police to assist in enforcing the terms of the order, such as by having them escort you to collect personal belongings or to collect the keys from the respondent for you;

Grant you custody of a pet that belongs to you, the respondent, or lives in either household; and/or

Order any other relief that you show you need to protect you from harm.

III. Filing for a Protection Order

A. Eligibility

To qualify for a protection order in DC, you must live or work in DC and at least one incident must have occurred in DC (see DC Code Section 16-1006). A protection order granted in DC is effective in all states in accordance with the U.S. Violence Against Women Act, which applies to all protective orders, regardless of whether the petitioner is a man or woman. Depending on the state, you may have to register your DC protection order with the court to make enforcement easier for the state. However, federal law requires the states to uphold a DC protection order regardless of whether it has been registered. If you move, you should also notify the DC court of your new address.

The time limit for filing for a protection order is two years. However, it is recommended that you file as soon as possible as judges view a long delay in filing less favorably. This is because the court will think that you were not really in danger, or else you no longer believed you were in danger, if you waited too long after the threat or crime. The judge will ask you why you waited so long after receiving the threat or injury to file for a protection order. If the judge is not satisfied with your reasons, he or she is more likely to deny your petition.

B. Evidence Gathering

When seeking a protection order, be sure to have the abuser's work and home address, phone number, a physical description, and any aliases he or she uses. Also bring any evidence of harassment, stalking, or abuse inflicted upon or threats made to you or your children that you collected, such as police reports, hospital records, pictures, journals, notes, letters, emails, text messages, recordings, 911 calls, damaged clothing or objects, and so on. You should also contact any witnesses and ask if they would be willing to testify on your behalf at the Civil Protection Order hearing.

If seeking temporary custody of a child, have with you the addresses the child has lived at for the past five years and with whom the child lived at each address. You will also need to know if there is any pending court case concerning custody of the child and whether you know of any other person besides yourself or the respondent who claims to have custody of the child.

If seeking temporary child support from the respondent, you must bring proof of your income and the respondent's income to the Civil Protection Order hearing. This includes two recent pay stubs, tax returns for the last two years, or a completed financial statement. If there are any other child support orders that affect you or the respondent, then bring copies of them as well.

If seeking to have the respondent vacate your home, you must bring the lease or deed to the Civil Protection Order hearing. In addition, if seeking to have the respondent reimburse you for medical costs, property damage, and other expenses you incurred due to his or her actions, bring those bills, invoices, receipts, or estimates to the hearing.

C. Starting the Process - The Temporary Protection Order

To file for a protection order, you must go to the Domestic Violence Intake Center and fill out the Petition and Affidavit for Civil Protection Order form (available here). Because the filing process can take several hours, it is recommended you have plenty of time to arrive at court before it closes at 4:00 pm. If you have an emergency situation, including if the Domestic Violence Intake Center's offices are closed, you can contact the Domestic Violence Unit at Police Headquarters.

If filing with the Domestic Violence Intake Center, you can choose whether to file for just a Civil Protection Order or also a Temporary Protection Order, which must be filed with the Civil Protection Order. An intake officer will assist with filling out the paperwork. When writing about the incidents, use descriptive words and include as much details, times, and dates as possible. If you and the respondent share children who live with you, you can also file for child support. When you are finished with the paperwork, a court advocate will talk with you about the hearing and can help provide other resources, including counseling, emergency funds, and shelter housing.

If filing for a Temporary Protection Order, you will have a hearing in front of a judge that day. You must show the judge that you are “is immediately endangered by the respondent” (see DC Code Section 16-1004(b)(1)). For instance, if being threatened with death or bodily harm, that would be considered immediate danger. In cases of stalking, if the behavior is continuous or escalates in severity, this would constitute immediate danger. If you have a message from the respondent saying he or she is coming to find you, combined with a threat of committing a crime against you, that could also be a case of immediate danger. If granted, the Temporary Protection Order will remain in effect until the Civil Protection Order hearing, or up to two weeks. If denied, you will still have the Civil Protection Order hearing scheduled.

D. Service

Regardless of whether a Temporary Protection Order is granted, during the period between filing and the Civil Protection Order hearing, the respondent must be served. Service, or delivering the petition to the respondent, cannot be done by you or any other party to the petition (see DC Code Section 16-1004(d)). You can arrange to have a non-party person who is 18 years of age or older to deliver the petition to the respondent. This person must sign a Return of Service confirming the petition was delivered, which you must bring to the hearing. You can also hire a private process server or request that the police serve the petition upon the respondent.

E. The Civil Protection Order Hearing

At the Civil Protection Order hearing, if the respondent does not appear at court and you have proof that the respondent was properly served, then you can obtain a default ruling if the judge finds there is reasonable belief that the harm you stated in the petition occurred. However, if the judge finds that the respondent was not properly served, you can ask to continue the case to give you time to serve the respondent again. If you have a Temporary Protection Order, you can also ask that it be extended until the continued hearing date.

If the respondent does appear, there is a negotiation requirement in DC where you meet with an attorney negotiator to see if you and the respondent can reach an agreement about the Civil Protection Order, such as if the respondent consents to the protection order. If an agreement is reached, the judge will review the agreement and make sure that all parties understand the details of the agreement. The judge will then sign the agreement, which will last for one year. On the other hand, if no agreement is reached during negotiations, you will present your evidence and any witnesses, including yourself, of the injuries or threats, and the respondent will submit evidence in defense. The judge will then decide whether to grant the Civil Protection Order if there is good cause to believe that the respondent committed or threatened to commit a prohibited act against you. If the judge states that a decision to grant or deny your petition will be made at a later date, be sure to ask that the Temporary Protection Order be extended until such time.

F. After the Hearing

If the judge denies your petition for a protection order, you should contact a domestic violence resource center to get advice on staying safe. You can also reapply for a protection order if a new violation is committed or a threat to commit a crime is made against you. You may also consider appealing the judge's decision.

If the judge grants your Civil Protection Order, you should review the order and make sure there are no mistakes (if there are, see the clerk about correcting the order). Then make several copies, one to keep with you and the others to give to others, such as the front desk of your workplace, your children's school or daycare, sympathetic neighbors, and so on. Include a picture of the respondent with the copy.

While the protection order is in effect, if you are a renter, you can ask your landlord to change the locks if you make the request in writing (see DC Code Section 42-3505.08). If the respondent is a tenant in your apartment, you will have to include a copy of the protection order that states the respondent must stay away from you. The landlord will have five business days to change the locks to all entrance doors to your apartment. While the landlord pays the initial cost, you may have to reimburse the landlord if, within 45 days, you receive a bill with proof of the cost. There may also be an administrative fee associated with the lock change that you may have to pay as well if, for instance, your lease provides that the landlord can change the locks upon request for a fee.

IV. Violations of the Protection Order

If you discover that the abuser has violated the protection order, contact the police and provide any evidence of the violation. This evidence can include a journal or log, voicemail messages, letters or envelopes, cell phone bills, emails, and pictures. If there are witnesses to the violation, ask if they would be willing to testify at a hearing. If you were injured as a result of the violation, go to the hospital immediately afterwards, inform the staff that you have a protection order, and take pictures of the injuries. One could be held in contempt of court for violating a protection order, which is punishable by a $1,000 fine and/or up to 180 days imprisonment (see DC Code Section 16-1005(f)-(h)).

You can also notify the court of a violation and bring proceedings against the respondent yourself by filing a motion to adjudicate civil contempt or a motion to adjudicate criminal contempt. You would file a motion for the former if the respondent did something such as failing to pay ordered child support. You would file a motion for the latter if the respondent harmed or threatened to harm you.

V. Extending, Modifying, or Vacating the Protection Order

Prior to the expiration of the protection order, you can file a motion to extend the protection order (see DC Code Section 16-1005(d)). At the same time, the respondent (and you) can file a motion to vacate the protection order if he or she can argue there is good cause as well. In addition, you can file a motion to change the terms of the protection order. If filing any of these types of motions, you must show “good cause” to the court to extend, modify, or vacate the protection order. Any motion you file must be served on the respondent in the manner explained previously.

Virginia Code § 20-108 provides that a court may modify a prior order that awarded child support. To change the court-ordered child support payments, there must have been a material or substantial change in circumstances. The party petitioning for an increase or decrease in child support bears the burden of proof by a preponderance of the evidence that a material change in circumstance occurred that justified that change. Edwards v. Lowry, 232 Va. 110, 112 (1986).

A prominent example of a material change is when a parent has a change in financial circumstances. If a parent were to motion for a reduction in child support payments, they must make a full and clear disclosure regarding his or her ability to pay. Hammers v. Hammers, 216 Va. 30, 31-32 (1975). However, there are some instances where the court will not modify a child support payment. If a parent takes on a new business venture or changes employment, he or she bears the risk of losing money, yet they are still obligated to pay child support. Antonelli v. Antonelli, 242 Va. 152, 156 (1991). Furthermore, case law holds “the risk of reduction in income as a result of a parent’s intentional act, even if done in good faith, is insufficient grounds for reducing the amount of support due under a pre-existing order.” Hamel v. Hamel, 18 Va. App. 10, 13 (Va. Ct. App. 1994). Lastly, if a parent has a reduction in income that is due to his own voluntary acts or to his own neglect, he must still pay child support. Hammers, 216 Va. at 31-32.

Another example of a material change in circumstance is when the needs of a child changes, including childcare costs. Parents may argue that as their children get older they don’t need to be placed in childcare anymore, and thus a reduction in child support payments may be justified. Shoup v. Shoup, 37 Va. App. 240, 254 (Va. Ct. App. 2001). However, some parents argue for an increase in support because their children may attend private school or even participate in extra-curricular activities that require greater sums of money. Joynes v. Payne, 35 Va. App. 386, 407 (Va. Ct. App. 2001).

Courts will also consider the change of physical custody from one parent to another as a material change in circumstance. SeeRippe v. Rippe, 3 Va. App. 506 (1986). Also, if a parent intentionally withholds visitation rights from the other parent without a sufficient reason, the courts may consider this to be a material change in circumstance as well. Va. Code Ann. § 20-108.

There are some instances where the court does not consider an event to be a material change in circumstance, and therefore will not increase, decrease, or terminate child support. For instance, if a parent earns income from secondary employment for the purpose of paying off a previous court-ordered child support debt, that income will not be calculated into his or her gross income. Va. Code Ann. § 20-108.2(C). Additionally, the court will not take into consideration the financial responsibilities of having other children who are not a party to the current proceeding, and thus they will not likely modify the child support payments in such instances. Id.

By: Audrey Henderson “[P]arents owe a duty of support to their minor children.” Kelleyv. Kelley, 248 Va. 295, 298 (1994). The payment of child support cannot be contracted around by the parents, and furthermore, a court cannot be barred from exercising its power to calculate child support from such an agreement. Id.Virginia Code § 20-108.2(B) provides a guideline of monthly basic child support obligations. The basic child support obligation is calculated based on the combined income of the parents and how many children the couple has (both natural born and adopted). Id. A court may allow an exemption that would make the child support obligation lower than the statutory minimum provided by the guideline. Id. Exemptions may include: (1) if the obligor is “unable to pay child support because they lack sufficient assets from which to pay the support and who, in addition, are institutionalized in a psychiatric facility”; (2) if the obligor is “imprisoned for life without chance of parole”; (3) if the obligor is medically disabled; or (4) if the obligor is “involuntarily unable to produce an income.” Furthermore, if the gross income of the obligor is equal to or less than 150% of the federal poverty line, the court may set an amount that is lower than the statutory minimum, provided that the amount doesn’t impair the other parent’s ability to maintain sufficient housing and provide basic needs for the child. Id. When the court computes the parent’s income, it includes income from: “salaries, wages, commissions, royalties, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment benefits, disability insurance benefits, veterans’ benefits, spousal support, rental income, gifts, prizes, or awards.” Va. Code Ann. § 20-108.2(C). However, there are some incomes that are not included when computing child support payments. These include: “benefits from public assistance and social services programs, federal supplemental security income benefits, child support received, or income received by the payor from secondary employment income” that is for the purpose of paying a court-ordered child support debt from another relationship. Id. Examples of secondary employment incomes are “incomes from an additional job, from self-employment, or from overtime employment.” Id. In addition, if one of the parents is already paying child support from a previous relationship and that child is not a party to the current proceeding, then that amount will be deducted from the gross income of that parent. Id. As per the establishment of a child support obligation, both parents are also required to pay “any reasonable and necessary unreimbursed medical or dental expenses. Va. Code Ann. § 20-108.2(D). This is calculated pursuant to the parents’ proportion of gross incomes. Id. These types of expenses may include “eyeglasses, prescription medication, prosthetics, orthodontics, and mental health or developmental disabilities services, such as services provided by a social worker, psychologist, psychiatrist, counselor, or therapist.” Id. A court will also take into consideration the costs for health care coverage, vision care coverage, and dental care coverage and add those expenses to the basic child support obligation. Va. Code Ann. § 20-108.2(E). Furthermore, if the custodial parent puts the child in some sort of licensed child-care system, those child-care costs will be added to the support obligation. Va. Code Ann. § 20-108.2(F). However, the court must “consider the willingness and availability of the noncustodial parent to provide child care personally in determining whether child-care costs are necessary or excessive.” Id. The amount of child support will also depend on your type of custody. The Virginia Code notes three types of custody: sole custody support, split custody support, and shared custody support. Sole custody is where one parent has full physical and legal custody of a child or children. Split custody is where both parents have physical custody of the child or children. Shared custody support is where a parent has “custody or visitation of a child or children for more than 90 days of the year.” To rebut the presumption of the amount of child support set out by the statutory guidelines, the court evaluates all the relevant evidence. Va. Code Ann. § 20-108.1(B). This leads to a very fact specific inquiry and every case will be different. Id. The court will look at fifteen factors, but each factor may not be applicable in every case.Virginia Code § 20-108.1(B) lists fifteen factors that Virginia courts evaluate to determine a rebuttable presumption of child support.

Actual monetary support for other family members or former family members;

Arrangements regarding custody of the children, including cost of visitation travel;

Imputed income to a party who is voluntarily unemployed or voluntarily under-employed; provided that income may not be imputed to a custodial parent when a child is not in school, child care services are not available and the cost of such child care services are not included in the computation and provided further, that any consideration of imputed income based on a change in a party’s employment shall be evaluated with consideration of the good faith and reasonableness of employment decisions made by the party, including to attend and complete an education or vocational program likely to maintain or increase the party’s earning potential;

Any child care costs incurred on behalf of the child or children due to the attendance of a custodial parent in an educational or vocational program likely to maintain or increase the party’s earning potential;

Debts of either party arising during the marriage for the benefit of the child;

Direct payments ordered by the court for maintaining life insurance coverage pursuant to subsection D, education expenses, or other court-ordered direct payments for the benefit of the child;

Extraordinary capital gains such as capital gains resulting from the sale of the marital abode;

Any special needs of a child resulting from any physical, emotional, or medical condition;

Independent financial resources of the child or children;

Standard of living for the children or children established during the marriage;

Earning capacity, obligations, financial resources, and special needs of each parent;

Provisions made with regard to the marital property under § 20-107.3, where said property earns income or has an income-earning potential;

Tax consequences to the parties including claims for exemption, child tax credit, and child care credit for dependent children;

A written agreement, stipulation, consent order, or decree between the parties which includes the amount of child support; and

Such other factors as are necessary to consider the equities for the parents and children.

Understanding how a court will evaluate a petition for modification to a custody order can make a significant difference in the outcome of that court’s ruling. In Virginia, courts initially decide custody based on what is in the best interest of the child. To determine this, a judge will consider the following ten factors on a case-by-case basis from Va. Code Ann. § 20-124.3:

The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs.

The age and physical and mental condition of each parent. See Huck v. Huck, No. 1604-14-1, 2015 Va. App. LEXIS 184, at *6 (Va. Ct. App. June 2, 2015) (unpublished) (comparing the evidence related to the mental health of both parents, including the father’s anger and bullying and the mother’s anxiety and depression, the court refused to favor one parent over the other in consideration of this factor).

The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child.

The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members. See Forbes v. Forbes, No. 1081-12-1, 2013 Va. App. LEXIS 176, at *6 (Va. Ct. App. June 11, 2013) (unpublished)(denying the father’s motion to modify custody because the mother had a family support system living nearby).

The role that each parent has played and will play in the future, in the upbringing and care of the child.

The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child.

The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child.

The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference. See Sims-Bernard v.Bernard, No. 2090-12-2, 2013 Va. App. LEXIS 282, at *10 (Va. Ct. App. Oct. 8, 2013) (unpublished) (refusing the mother’s request for custody modification because, though her daughters stated a preference to living with their mother, this was not in their best interest due to the mother’s “mental abnormalities” in attitude towards their father).

Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; See Craven v. Williamson, No. 1023-11-4, 2012 Va. App. LEXIS 2, at *3 (Va. Ct. App. Jan. 10, 2012) (unpublished) (determining that evidence presented at trial indicated a history of abuse when the father frequently lost his temper and yelled at his children, in addition to him “stomping” on one child in anger).

Such other factors as the court deems necessary and proper to the determination.

Once a custody order is entered, the parent seeking modification ordinarily must establish both that the circumstances have materially changed since the last custody order and that the best interests of the child require a modification of custody.[1] To determine this, the court looks at the evidence presented and compares it to the ten best interest factors discussed above.[2] Most importantly, while making this decision courts are not required to weigh each of the ten factors equally or to elaborate on the amount of weight or consideration it gives each factor.[3] However, the court’s findings must be supported by evidence on the record or this will be considered an abuse of the court’s discretion.[4]

An example of how courts may evaluate the ten best interest factors independently and in conjunction with one another can be found in Bostick v. Bostick-Bennett.[5] In this case, the court compared the father’s degree of parental stability (factor three) with the mother’s ability to actively support the child’s relationship with the other parent (factor six), and initially granted sole custody to the father because it found that he could offer the child a more stable living environment.[6] The mother, though not unfit, could not provide the same level of support to the child as the father; however, the court allowed for visitation to foster and encourage the relationship between mother and child.[7] A short time later, when the father petitioned the court to relocate his child to North Carolina, his request was denied because he failed to prove a material change in circumstances that would warrant the child’s removal from Virginia.[8] Looking at the evidence presented, the court concluded that maintaining a relationship between the child and her mother would be in the best interest of the child, and that this relationship would be jeopardized if the father was granted his request to move to another state.[9]

Material Change in Circumstances

While the ten statutory factors are important to the modification of a custody order, a petitioner must first show the occurrence of a material change in circumstances. Next the petitioner should focus on these factors to demonstrate that a modification of custody is in the best interest of the child.

Virginia Code § 20-108 sets out one way for courts to determine if a material change has occurred by stating that the “intentional withholding of visitation of a child from the other parent without just cause may constitute a material change in circumstances justifying a change of custody in the discretion of the court.” A change in circumstances is not limited to negative events that may occur in the home of the custodial parent, though.[10] A material change may also broadly include changes that the child experiences, such as their level of maturity or any special educational needs, or may include positive changes to the circumstances of the noncustodial parent, such as remarriage or the increased ability to provide a stable home environment.[11] Ultimately, however, no change in custody will be allowed if the change in circumstances is not in the best interest of the child.[12]In Haring v. Hackmer,[13] the mother alleged a material change in circumstances occurred that would justify modification to the custody order that originally granted the father sole custody of their child. Namely, the mother argued that the father’s circumstances had declined when he remarried, moved his daughter to a new school due to relocation within the state, his financial situation had deteriorated, he had an unstable employment history, the daughter's mental and physical health had deteriorated since living with him, he allowed his daughter's medical insurance to lapse, and had not ensured that their daughter received proper medical and dental care.[14] Conversely, the mother alleged that her circumstances had improved because she relocated within the state and had established a successful insurance business.[15] Considering the evidence presented at trial, the court found no material change in circumstances, and the mother’s motion for modification was denied.[16]

Courts have also found that the following conditions do not indicate a material change in circumstances:

A change in work schedule allowing a parent to work from home and care for the child, an increase in the length of a subsequent marriage, or the custodial parent’s home being located in a neighborhood with few children. Humphries v. Davis, No. 0775-98-2, 1998 Va. App. LEXIS 635, at *4-5 (Va. Ct. App. Dec. 8, 1998) (unpublished).

In contrast, courts have found that the following conditions do indicate a material change in circumstances:

Making and then suddenly canceling plans to relocate to another country at the detriment of causing an unstable living environment for the child. Laing v.Walker, No. 1693-94-3, 1995 Va. App. LEXIS 592, at *5 (Va. Ct. App. July 18, 1995) (unpublished).

Showing by the noncustodial parent can show that the remarriage of the noncustodial parent has provided for a more stable living environment, that the child has become increasingly withdrawn since living with custodial parent, and that the child preferred to live with the noncustodial parent. Turner v Turner, 3 Va. App. 31, 34, 348 S.E.2d 21, 23 (1986).

Failure by the custodial parent to sufficiently support the children when their grades declined, when compared to the noncustodial parent who frequently met with the children’s teachers. Schoonover v. Schoonover, No. 0554-99-3, 1999 Va. App. LEXIS 518, at *5-6 (Va. Ct. App. Sept. 7, 1999) (unpublished).

Without a material change in circumstances and evidence that a change in custody is in the best interest of the child, a court will not grant the petition to modify custody.

There are two ways a court may change or modify a spousal support award: (1) where both parties agree to modify the amount, or (2) where a material change in circumstances or change in event happens that would involve a change in the spousal support amount.

Agreement to Modify by the Parties

The most efficient way to change a spousal support order is by agreement of the parties because a court cannot unilaterally change an agreed upon spousal support award according to the terms or stipulation or contract signed by both of the parties. See Blackburn v. Michael, 30 Va. App. 95, 100 (Va. Ct. App. 1999).

Material Change in Circumstances or Change in Event

However, if the parties cannot agree to a modification themselves, then upon the petition of either party, a “court may increase, decrease, or terminate the amount or duration” of any spousal support using the factors mentioned in my blog post How Do I Calculate the Amount of Spousal Support I owe or that is Owed to Me? Va. Code Ann. § 20-109(B). See also Thomas v. Thomas, 217 Va. 502, 505 (1976) (“where changed circumstances are demonstrated,” either spouse can petition for an increase, decrease, or termination of spousal support). The court may make these changes if (1) there has been a material change in the circumstances for either of the parties, or (2) if an event the court anticipated during the duration of the award did not in fact happen. Id.

The party moving for a modification of spousal support has additional burdens and thresholds to overcome. He or she must prove “both a material change in circumstances and that this change warrants a modification of support. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605 (Va. Ct. App. 1989). The material change in a spouse’s circumstance must occur after the court’s award decree. Hiner v. Hadeed, 15 Va. App. 575, 577 (Va. Ct. App. 1993). The change in circumstances that allow a court to modify the spousal support must be financial and economic ones. Hollowell v. Hollowell, 6 Va. App. 417, 419 (Va. Ct. App. 1988).

For example, the court in Reece v. Reece granted the husband’s request for a decrease in spousal support because he “proved that his financial circumstances had materially changed . . . after he involuntarily lost his job” as opposed to voluntarily leaving his job. Reece v. Reece, 22 Va. App. 368, 373 (Va. Ct. App. 1996). Additionally, there was no evidence that the husband refused a comparable employment opportunity that would “deliberately minimized his income for the purpose of reducing his ability to support [his] wife.” Id. at 374-75.

But, simply losing your job is not necessarily enough to secure a reduction in spousal support. For example, in Smull, the husband was working full time at a corporation when the corporation lost a contract. Smull v. Smull, 45 Va. Cir. 336, 336 (Va. Cir. Ct. 1998). The husband was involuntarily placed on part time duty with the corporation. Id. He then decided to begin a new career that paid much lower than his corporate job. Id. Subsequently, the court denied his request to decrease his spousal support payments reasoning that his inability to pay was due to his own negligence of not securing a comparable job that had the same earning capacity as his corporation job. Id. at 337.

Circumstances that May Terminate Spousal Support

Spousal support may not last forever. In fact, there are three common instances that usually end spousal support.

1.Habitual Cohabitation

If a spouse whom is receiving spousal support and has been habitually cohabitating with another person in a relationship that is analogous to a marriage for one year or more, the other spouse can petition the spousal support. Va. Code Ann. § 20-109(A). The court must terminate the spousal support in this situation unless the divorced parties had a stipulation or contract that said otherwise or unless the spouse receiving the spousal support proves by a preponderance of the evidence that the termination of the support would be unconscionable. § 20-109(A)(i)-(ii).

2.Remarriage

Va. Code Ann. § 20-110 states that if the spouse receiving the spousal support remarries, then the spousal support must terminate the date of the new marriage. The spouse receiving the support has an affirmative duty to notify the other spouse paying the support to cease payments. Id.

3.Death

Unless the parties had some sort of stipulation or contract that stated otherwise, spousal support must terminate upon the death of either of the parties. Va. Code Ann. § 20-109(D).

Formally known as “alimony,” when one spouse needs more financial support than the other, the spouse in need may petition the court for spousal support after the divorce complaint has been filed. The traditional example is a stay-at-home mom who takes care of the kids while the dad leaves the home for a 9 to 5 office job. Because mom’s job did not produce a financial income that she could rely upon after that marriage ended, courts allow mom (or the spouse in need of financial assistance) to file for spousal support.

When determining the amount of spousal support, the court evaluates all relevant evidence, which leads to a very fact specific inquiry. Va. Code Ann. § 20-107.1(E). In other words, every case will be different and the court will look at thirteen factors, but each factor may not be applicable in every case.

1.The obligation, needs and financial resources of the parties, including income from all pensions, profit sharing, or retirement places. The Virginia State Bar states that the courts place much significance on the payor’s ability to pay the support and do not overweigh the payee’s need for the spousal support.

2.The standard of living established during the marriage, and not the standard of living a spouse lives after the married dissolved. See Furr v. Furr, 13 Va. App. 479 (Va. Ct. App. 1992) (the court increased the spousal support award for the wife, holding that the wife experienced a marked reduction in her standard of living due to a dramatic rise in living expenses after the divorce, but not necessarily due to the divorce itself).

3.How long the marriage lasted. The Virginia State Bar has stated that “[a] financially dependent spouse of a long-term marriage is more likely to receive an award of spousal support than one who has been in a short marriage.” See alsoKeyser v. Keyser, 7 Va. App. 405 (Va. Ct. App. 1988) (finding that four years of marriage is considered a relatively short marriage and that having a relatively short marriage alone does not bar a spouse from rights and interests in the marital assets); Robinson v. Robinson, 45 Va. App. 682 (Va. Ct. App. 2005) (husband only paid spousal support for seventeen months because marriage lasted relatively short duration); Baer v. Baer, No. 2278-94-1, 1996 Va. App. LEXIS 73 (Va. Ct. App. Feb. 6, 1996) (holding that the short duration of a marriage is considered when applied with other spousal support factors, but cannot be the only factor to consider).

4.The age and physical and mental condition of the parties and any special circumstances of the family. See Cooper v. Cooper, 4 Va. Cir. 154 (Va. Cir. Ct. 1984). (the court took into consideration that the wife had multiple sclerosis, was disabled, and received Social Security disability benefits and was unable to participate in gainful employment when ruling in favor of spousal support to the wife).

5.The extent to which the age, physical or mental condition or special circumstances of any child of the parties would make it appropriate that a party not seek employment outside of the home. See Block v. Block, 2005 Va. App. LEXIS 82 (Va. Ct. App. Mar. 1, 2005) (“[t]he court particularly referenced the income and earning capacities of the parties . . . the special needs of the one child; and the decisions regarding employment” for the spousal support award).

6.The contributions, monetary and nonmonetary, of each party to the well-being of the family. See Holmes v. Holmes, 7 Va. App. 472 (Va. Ct. App. 1988) (the court noted that while the husband provided almost all the monetary contributions, the wife provided a significant amount of nonmonetary contributions including the duties of homemaker, mother, and military officer’s wife).

7.The property interests of the parties, both real and personal, tangible and intangible. See Martin v. Martin, 2009 Va. App. LEXIS 80 (Va. Ct. App. Feb. 24, 2009) (holding that the trial court properly considered both real and personal property, tangible and intangible when ruling that it was not going to put the wife in a position of trying to sell the marital home for the purpose of having a lower mortgage payment).

8.The provisions made with regard to the marital property under § 20-107.3

9.The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity. See Srinivasan v. Srinivasan, 10 Va. App. 728 (Va. Ct. App. 1990) (the court took note that the wife was capable of earning a certain amount per year, yet held that she was entitled to a reasonable time to secure employment, and thus was awarded spousal support).

10.The opportunity, ability, and/or the time and costs involved for a spouse to acquire the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability. See Holmes v. Holmes, 7 Va. App. 472 (Va. Ct. App. 1988) (the court awarded the wife spousal support by considering the wife’s limited opportunity to seek training and employment at the age of sixty-four).

11.The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time. See Hubbard v. Hubbard, 2008 Va. App. LEXIS 504 (Va. Ct. App. Nov. 18, 2008) (the court took into consideration that both the husband and wife agreed that wife would leave workforce to take care of four children while he worked).

12.The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party. See Hicks v. Hicks, 2012 Va. Cir. LEXIS 80 (Va. Cir. Ct. June 13, 2012) (the court took into consideration that the husband financially supported the wife’s college education during the marriage and thus reduced the amount of spousal support given to her).

13.Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

In setting the spousal support amount, a court “a court must look to current circumstances and what the circumstances will be ‘within the immediate or reasonably foreseeable future,’ not to what may happen in the future.” Srinivasan v. Srinivasan, 10 Va. App. 728, 735 (Va. Ct. App. 1990) (quoting Young v. Young, 3 Va. App. 80, 81-82 (Va. App. Ct. 1986)).

These factors help to determine the nature, amount, and duration of the spousal support. The court can order that the spousal support needs to be paid in periodic payments for a defined duration, in periodic payments for an undefined duration of time, in one lump sum, or a combination of any of these. Va. Code. Ann. § 20-107.1(C).

Stay tuned for my next blog post about how to change or modify the spousal support award due to a material change in circumstances.

By: Lloyd Jeong When a parent has sole custody of a child, that parent has complete say over child visitation with the non-custodial parent. However, in most cases, the courts grant the parents joint legal custody (the parents share the responsibility of making decisions for the child) and grant one parent primary physical custody (the child resides with this parent most of the time). Therefore, a visitation schedule is required for the parent without primary physical custody and the child. In an ideal world, both parents will make compromises and reach a visitation agreement that satisfies both parents and is convenient for the child. Unfortunately, however, disputing parents may not be able to come to a amicable agreement. When parents are unable to reach an agreement, the court will set a visitation schedule for the parents and child. The Virginia judicial system website lists several factors to consider when coming up with a visitation schedule.

Be child-focused;

Encourage frequent and continuing contact with each parent;

Preserve the dignity of all parties;

Help the family spend time, money and emotional resources in the most positive ways; and,

Ensure that children benefit from a healthy, non-abusive family environment at all times.

Additionally, when approving a visitation schedule, the court will consider the “best interests of the child” and the corresponding 10 factors that were previously discussed. If parents cannot agree on a visitation schedule, the court may order parents to participate in mediation. Mediation is where the a neutral third party helps the parents reach an agreement amicably. If the parents are still unable to reach an agreement after mediation, then each parent may propose a schedule to the court. The judge may either accept one of the proposed schedules, or create a new visitation schedule. Once the judge orders a visitation schedule, the parents must follow the ordered schedule.

When deciding which parent (or other person) is granted custody of the child, the Virginia courts determine what is in the “best interests of the child.” To make this determination, the courts consider ten factors as listed in Virginia Code § 20-124.3:

The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

The age and physical and mental condition of each parent;

The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

The role that each parent has played and will play in the future, in the upbringing and care of the child;

The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

Such other factors as the court deems necessary and proper to the determination.

No one factor is decisive by itself. Courts will consider all of the factors above and weigh them against each other before making a final decision. For example, if there is a custody dispute between a wealthy parent who has a history of domestic violence and a less affluent parent, the court may decide to grant custody to the parent with less financial resources after weighing all ten of the factors.

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